CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death (six counts) – Dangerous driving causing serious injury (four counts) – Driver aware of likely presence of young people near road – Warning to ‘take it easy’ – Whether conscious disregard of risk – Recklessness and negligence distinguished – Whether driving ‘in worst category’ – Relevance of knowledge of risk, degree of risk, extent of likely harm – Appropriateness of orders for cumulation where multiple victims – Whether total sentence for multiple counts limited to maximum penalty for single count – Sentence of 10 years with non-parole period of seven years not manifestly excessive – Application for leave to appeal refused – R v De Montero [2009] VSCA 255 applied.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J Rapke QC with Mr T Gyorffy
Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant
Mr R Richter QC with Mr M J Croucher and Ms K Blair
Victorian Aboriginal Legal Service
MAXWELL P:
The applicant (‘T’) was driving on a country road in February 2006 when he lost control of his car. The car slewed across the road and struck a group of young people who had been attending a party in a nearby home. Six of them were killed. Four others were seriously injured.
T was charged with six counts of culpable driving causing death and four counts of causing serious injury negligently. He was also charged with one count of failing to stop after an accident; one count of failing to render assistance; and two counts of reckless conduct endangering serious injury.
In s 318(2) of the Crimes Act 1958 (Vic), Parliament has defined four categories of driving which will constitute culpable driving. Only two are relevant for present purposes. Under those provisions, a person drives a motor vehicle culpably if he/she drives the vehicle:
(a)recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or
(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case;
…[1]
The charges against T were based on the second of these categories. That is, the Crown case was that he had failed ‘unjustifiably and to a gross degree’ to take reasonable care in the circumstances.
[1]Emphasis added.
The jury acquitted T on all of the culpable driving counts. In relation to each of the six deaths, however,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Towle [2009] VSCA 280
Case
[2009] VSCA 280
Decision Date
CaseChat Overview and Summary
In the matter of R v Towle, the respondent was convicted of six counts of dangerous driving causing death and four counts of dangerous driving causing serious injury. The case was brought before the Court of Appeal of Victoria, where the respondent sought to appeal against his sentence. The central legal issues that the court had to address were whether the respondent's driving fell into the worst category of dangerous driving, and if so, whether the sentence imposed was manifestly excessive.
The court examined the distinction between recklessness and negligence in the context of dangerous driving, emphasising the importance of the driver's awareness of the risk and the extent of likely harm. The respondent had been warned to "take it easy" and was aware of the likely presence of young people near the road. The court held that the respondent's driving demonstrated a conscious disregard of a substantial risk of death or serious injury to others, placing his driving in the worst category. The court further determined that the sentence of 10 years imprisonment with a non-parole period of seven years was not manifestly excessive, considering the severity of the respondent's actions and their consequences. The appeal was dismissed, applying the principles set out in R v De Montero.
As a result of the court's decision, the respondent's application for leave to appeal was refused. The court upheld the trial judge's orders for the sentences to run cumulatively, finding it appropriate in light of the multiple victims and the nature of the offences. The court's reasoning underscores the importance of considering the driver's awareness of risk and the extent of likely harm in determining the appropriate classification and sentence for dangerous driving cases.